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McMann v. Air & Liquid Systems Corp.

United States District Court, W.D. Washington, Tacoma

September 2, 2014

ALAN McMANN and DONNA McMANN, husband and wife, Plaintiffs,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

ORDER ON DEFENDANT PACIFICORP'S MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendant PacifiCorp's Motion for Summary Judgment. Dkt. 21. The Court has considered the pleadings filed in support of and in opposition to the motion, and the file herein.

Plaintiffs bring this case alleging that Alan McMann contracted pleural mesothelioma as a result of being exposed to asbestos while in the United States Navy from 1961 to 1965 and while he worked as a union carpenter at a variety of work sites from 1966 to 1978. Dkt. 22, at 4. Defendant PacifiCorp now moves to have the claims against it summarily dismissed. Dkt. 21. PacifiCorp's motion is granted because there are no genuine issues of fact as to whether Mr. McMann was exposed to asbestos while on PacifiCorp's property. The Court need not reach whether PacifiCorp owed a duty of care to him.

I. FACTS AND PENDING MOTION

A. Relevant Facts

After Mr. McMann left the United States Navy, he began to work as a union carpenter apprentice. Dkt. 32-20, at 43. He worked on multiple jobs sites. Dkt. 32-20, at 43-44, and 84. He testified that the first job (after his military service) that he believed he was exposed to asbestos was when he helped build duplexes in Lacey, Washington in 1968. Dkt. 32-20, at 43-44. Mr. McMann testified that the next job site that he believed he was exposed to asbestos was at the Centralia Steam Plant ("CSP"), and it is that site that is the subject of this motion. Dkt. 32-20, at 53-54.

The CSP was constructed in the late 1960s and early 1970s by a group of eight utilities. Dkt. 32-27. The moving party here, PacifiCorp's predecessor in interest, Pacific Power & Light Company ("PP&L"), was the lead utility, with a 47% interest in CSP. Dkt. 32-27, at 5 and 12. PP&L contracted with Bechtel Corporation to design and construct CSP. Dkt. 32-26, at 4-50.

Mr. McMann started working at CSP in August of 1969 when the plant was being constructed. Dkt. 22, at 7 and 15. He testified that he worked for Bechtel, and only Bechtel, at the CSP. Dkt. 32-20, at 54 and 88. He had a hunting accident around October of 1969 and took five months off work. Dkt. 22, at 7. Mr. McMann returned to work at the CSP around March of 1970. Dkt. 22, at 7. After being shown Social Security Administration records, he agreed he worked there until 1970 (Dkt. 22, at 4 and 10), but a week later, at another deposition, testified that he worked there until August of 1971 (Dkt. 32-20, at 55).

Mr. McMann's Social Security Administration Earnings Records show that he worked for Sequoia Ventures, Inc. in the 3rd and 4th quarters of 1969, and then again in the 2nd and 3rd quarters of 1970. Dkt. 22, at 24. (In 1980, Bechtel changed its name to Sequoia Ventures, Inc. Dkt. 22, at 6. Sequoia Ventures, Inc. states that these statements accurately reflect payments from Bechtel Corporation. Dkt. 22, at 11.) He did not earn any other wages with Sequoia Ventures, Inc./Bechtel. Id. Starting in the fourth quarter of 1970, Mr. McMann had earnings from CE & C Inc. in Tacoma, Washington and HCI Western in Portland, Oregon. Dkt. 22, at 25.

SequoiaVentures, in its answers to interrogatories, states that Mr. McMann worked for Bechtel from June 27, 1969 through November 19, 1969 and again from April 1, 1970 through September 16, 1970. Dkt. 22, at 8. Although difficult to read, Bechtel's termination records indicate that Mr. McMann's last day was September 16, 1970. Dkt. 25-1, at 3.

On August 10, 1970, Bechtel notified Owens Corning Fiberglass ("Owens Corning") that it had been awarded the thermal insulation contract for the CSP. Dkt. 25-2, at 23. Owens Corning was advised that it needed to provide certain documents and once it did, final execution of the contract would occur. Id.

Bechtel generated weekly progress reports on the CSP project. See, e.g., Dkt. 32-22. For the week ending September 6, 1970, it reported that "Owens-Corning Fiberglass Corp. arrived on the job under their contract to supply and install all piping and machinery insulation and to install boiler insulation." Dkt. 32-22, at 5. For the week ending October 18, 1970, Owens Corning was reported as having "shot insulation pins on the north Unit #1 water wall panels below 390 elevation, and sanded spots for pins on the west water wall panels." Dkt. 32-22, at 11. In the progress report for the week ending October 25, 1970, Bechtel reported that "Owens-Corning Fiberglass continued welding pins on the boiler walls. Domestic water lines in the locker room have been insulated. Scaffolding is being erected for insulation on the duct to the burner connecting duct." Dkt. 32-22, at 16. The following two weeks, Owens Corning "continued welding pins on the boiler walls, erected scaffolding for insulation on the duct to the burner connecting duct, and welded mesh on Unit #1 hot air duct." Dkt. 32-22, at 21 and 26. It is not until the week ending November 15, 1970, that Bechtel reports that "Owens-Corning Fiberglass began placing insulation on the north, south, and west walls of the Unit #1 boiler above and below elevation 357', erected scaffolding for insulation on the duct to the burner connecting duct, and welded mesh on Unit #1 hot air duct." Dkt. 32-22, at 30.

When asked how he believed he was exposed to asbestos when working at the CSP, Mr. McMann stated that he "was close by the insulators doing their job." Dkt. 32-20, at 56. He was then asked:

Q. What were the insulators doing?
A. They were putting insulation around the ...

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